Waite v. Larocque

12 App. D.C. 410, 1899 U.S. App. LEXIS 3539

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 22, 1898
• Docket: No. 750
• Status: Published

Opinions

Mr. Justice Morris

delivered the opinion of the Court:

This is an appeal from a decree of the Supreme Court of the District of Columbia, dismissing without prejudice, a bill of complaint upon the interposition of a demurrer thereto based upon the allegation that necessary parties had not been made thereto.

On or about April 5, 1888, upon the death of the late Chief Justice of the Supreme Court of the United States, Morrison R. Waite, a fund of $21,000 was raised in the city of New York for the benefit of his widow and family. By the terms of the subscription paper it was placed in the hands of the appellees, Joseph Larocque, George Hoadley and Charles C. Beaman, as trustees, to be invested by them, and to apply the income and principal or any part thereof in their absolute discretion to the use and benefit of the widow or family of the late Chief Justice Waite, and upon the death of his widow to pay over whatever balance might remain as she should, by her last will and testament, direct; and in case of failure of such direction, then to pay over and distribute such balance to and among such of the next of kin of said Chief Justice Waite and in such amounts as the said trustees should in their absolute discretion think proper.

The fund was invested and the income thereof was promptly and faithfully paid to Mrs. Amelia C. Waite, the widow of the Chief Justice, as long as she lived. Mrs. Waite, who was a resident of the District of Columbia, died on or about February 21,1896, leaving a will executed on or about December 26, 1888, and duly admitted to probate by the Supreme Court of the District of Columbia, on March 18, 1896, whereby, among other devises and bequests, she sought to execute the power of appointment reserved to her in the trust creating the fund in question, and to dispose of that fund and of another similar fund in the hands of Mr. Justice Blatchford. The portion of her will by which she sought to make this disposition is as follows:

“ Second. I also give, devise and bequeath to my said daughter, Mary Frances Waite, if she survives me, the use and income of all the property which I may possess at the time of my decease, which came to me by the will of my late husband, so long as she, my said daughter, lives and remains unmarried. I also give, devise and bequeath to my said daughter, Mary Frances Waite, if she survives me, the use and .income, so long as she, my said daughter, lives and remains unmarried, of the fund collected in the city of New York for the use and benefit of the widow or family of the late Chief Justice Waite, and which, by the paper under which it was subscribed, was placed in trust in the hands of Messrs. Joseph Larocque, George Hoadley and Charles C. Beaman, and the balance of which it wáfe prescribed by said paper that, upon the death of his widow, they should pay over as she should, b}^ her last will and testament, direct; and also of the other fund collected for the use and benefit of said widow or family of the late Chief Justice Waite, and placed in the hands of Samuel Blatchford, an associate justice of the Supreme Court of the United States, and held and invested by him. In case my said daughter shall be married at the time of my decease, or in case she shall be married after my decease, then it is my wish, and I direct, that the money and securities which shall then constitute the said two funds, and the property mentioned in this clause of my will which came to me by will from my late husband, or such part thereof as my said daughter may have at the time of her marriage, if married after my decease, be divided into four equal parts or shares, one of which parts or shares I give, devise and bequeath to my said daughter, Mary Frances Waite, to be her own separate property — to have and to hold the same to her, her heirs and assigns forever. The three parts or shares thereof remaining I give, devise and bequeath as follows, viz: One part or share thereof to my daughter-in-law, lone B. Waite, the widow of my deceased son, Henry S. Waite, of Toledo, Ohio, in trust for her own separate use during her natural life ; one part or share théreof to my daughter-in-law, Lillian G. Waite, the wife of my son, Christopher C. Waite, of Cincinnati, Ohio, in trust for her own separate use during her natural life; and one part or share thereof to my daughter-in-law, Anna C. Waite, the wife of my son, Edward T. Waite, of Toledo, Ohio, in trust for her own separate use during her natural life. At the death, respectively, of my said daughters-in-law, whether before or after such division, I direct that the share or part of my estate devised to each of them, as aforesaid, be distributed and paid to their respective children, the issue of marriage with my sons aforesaid, according to the present laws of descent and distribution of the State of Ohio, to be held by such children, their heirs and assigns, forever. Whenever my said daughter shall die, unmarried, then it is my wish, and I direct, that the property mentioned in this clause of my will, which came to me by will from my late husband, or such part thereof as my said daughter may have at the time of her death, and the money and securities which shall then constitute the said two funds, be divided into three equal parts or shares, which I give, devise and bequeath as follows, viz: One part or share thereof to my daughter-in-law, lone B. Waite, the widow of my deceased son, Henry T. Waite, of Toledo, Ohio, in trust for her own separate use during her natural life; one part or share thereof to my daughter-in-law, Lillian G. Waite, the wife of my son, Christopher O. Waite, of Cincinnati, Ohio, in trust for her own separate use during her natural life; and one part or share thereof to my daughter-in-law, Anna C. Waite, the wife of my son, Edward T. Waite, of Toledo, Ohio, in trust for her own separate use during her natural life. At the death, respectively, of my said daughters-in-law, whether before or after such division, I direct that the share or part of my estate devised to each of them as last aforesaid, be distributed and paid to their respective children, the issue of their marriage with my sons aforesaid, according to the present laws of descent and distribution of the State of Ohio, to be held by such children, their heirs and assigns, forever.

“ If, from any cause, the income and use of the property devised by me, as aforesaid, to my said daughter, Mary Frances Waite, shall not be sufficient for her comfortable support and maintenance, it is my wish, and I direct, that she use so much of the principal thereof as she may consider necessary for her support and maintenance, so long as she lives and remains unmarried.”

The son of the testatrix, Christopher C. Waite, and the aforesaid daughter, Mary Frances Waite, were made executors of the will, and the former dying about the same time as his mother, the daughter, Mary Frances Waite, alone qualified as executrix, and received letters testamentary upon the estate. She remained and }mt remains unmarried.

Considering that, in consequence of the general power of appointment vested in her and the full exercise of that power by the testatrix, the fund in question became a portion of the general assets of her estate, of which the executrix was entitled to take possession and dispose, the executrix made demand upon the trustees of the fund to deliver it up to her, and upon their refusal to do so without some order of a court, she filed the present suit in the Supreme Court of the District of Columbia, sitting as a court of equity, for the purpose of requiring them to deliver the fund to her.

The suit is understood to be entirely amicable, for the purpose óf determining the complainant’s rights in the premises, and for that reason, we presume, the defendants, who are all residents of the City and State of New York, where the fund was raised and is held, have consented for the convenience of the complainant to be sued in the courts of the District of Columbia. But they do not consent to the form of the bill of complaint filed by the appellant. On the contrary, they object to it as being insufficient, from the absence or omission of necessary and proper parties, to relieve them from future liability. For that reason, as it appears from the bill of complaint and the exhibits annexed to it, that there are other parties in interest besides the complainant and the trustees, they have filed a demurrer to the bill on the ground of this omission. This demurrer was sustained in the court below, with leave to the complainant to amend the bill by making the proper parties; but this she declined and refused to do, and thereupon a decree was entered, dismissing the bill, without prejudice, from which the complainant has appealed to tins court.

Why the complainant should not have made the proper parties in the first instance, when it was so very obvious that there were other parties proper to be introduced into the case for the protection of their own interests; or why when the demurrer based upon the omission of such parties was sustained, she still refused to give those parties the opportunity of being heard in the cause, is not quite apparent to us. That the daughters-in-law and grandchildren of the testatrix, Amelia C. Waite, to whom that lady in her will attempted to convey a residuary interest in the fund in question, wore at least proper parties to the suit as defendants, if not absolutely necessary parties, is beyond question; and the trustees for their, own protection were entitled to have them brought in. There are important questions involved in the case which would make it eminently right and proper that all parties whose interests would in any manner be affected by a decision in the case should be before tlie court. Still, it is the right of the complainant,, if she so elects, to Insist upon the distinction in equity between necessary and proper parties, and to claim that the persons suggested by the demurrer as necessary parties are not such, but at most only proper parties, who may be omitted without prejudice to the complainant to have the-rights claimed by her established as against the trustees of the fund. And this is the only question before us for determination. The arguments and briefs of counsel in the case are in great part devoted to the consideration of the mam issue sought to be raised by the bill of complaint — that is, the question whether the complainant, as executrix of her mother’s last will and testament, is entitled to take possession of the fund in controversy as part of the general assets of her mother’s estate. But this issue we do not regard as now involved, except incidentally. The question made by the pleadings is whether the parties necessary for the determination of that issue are before the court.

The distinction in equity between necessary parties and proper parties is M7ell established. The question was discused at considerable length by the Supreme Court of the United States in the case of Shields v. Barrow, 17 How. 130; and there, and in the subsequent cases of Ribon v. Railroad Co., 16 Wall. 446, and Gregory v. Stetson, 133 U. S. 579, and others which it is unnecessary to cite, the rule was laid down that all persons whose interests would be affected by a decree of the court in the cause must be made parties to the suit; and we do not understand that this rule, based upon elementary principles of equity and supported by all the text books, has ever been departed from in any manner, except.in as far as under the rules of the Supreme Court provided for the courts of equity of the United States, trustees for real estate have been held to represent their beneficiaries. Under this rule, the only inquiry left for us is whether the interests of the parties omitted from the bill of complaint before us and suggested by' the demurrer as indispensable parties, are such as that they would necessarily be affected by the decree sought by the complainant. And to this inquiry it seems to us that the answer is not doubtful. Not only would those interests be materially and vitally affected by the decree, but they are the only interests that would be so affected. The trustees have no interest whatever in the premises, and they claim none. They are simply stakeholders, ready and desirous to turn over the fund to the person or-persons entitled to receive it from them. And if they can be held to represent any interest other than their own, it is equally the interest of the complainant and of the omitted parties.

If the claim of the complainant be well founded, that by the exercise by the testatrix of the power of appointment vested in her for the disposition of the fund in the hands of the defendants, that fund thereupon became part of the general assets of her estate, subject to be disposed of for the payment of debts and for any other purpose for which general assets may be available, of the validity of which claim we desire distinctly to slate that we express here no opinion, notwithstanding that it has been elaborately argued by counsel, most assuredly the establishment of that claim by a decree of the court would most materially affect the interests of the omitted parties. In fact, it would destroy those interests; for its practical effect would be to nullify the express provisions of the will of the testatrix in regard to them, under the application of a technical rule of law supposed to be of paramount authority. That rule of law, if it is the rule in the District of Columbia, is not so well established as that persons interested for or against it should not be heard upon the subject. Nor is it entirely clear that, if it be the rule in the District of Columbia, this fund, created in the State of New York, and having a certain situs in that State, should be governed by it.

The complainant’s claim evidently contravenes the manifest purpose and plain intention of the testatrix, as expressed in her will. The contention is, in substance, that the testatrix, by the very act by which she created, or attempted to create, these interests under the power of appointment, at the very same moment destroyed them by the operation of a rule of law. We do not say that this is not the result of her action. But we do say that, under circumstances like the present, it is the plain dictate of the most elementary principles of justice and equity, that parties should be heard in defence of their apparent rights before those apparent rights are decreed to be a mere nullity.

It has been suggested that the trustees may be assumed to represent the omitted parties. But plainly this suggestion is without force. The trustees no more represent these parties than they do the complainant. So far as at present they are trustees at all, they are equally trustees for both. They have, in fact, no interest but to deliver the fund to the parties entitled, or to hold it for the bénefit of such parties. They can represent no one in this ease but themselves. In view of the fact that the only antagonism thus far elicited in this case is between the interest claimed by the complainant and the interest apparently vested in the omitted parties, a bill, wherein those parties were introduced and the trustees omitted, could more properly be sustained than the present proceeding.

Equally inapplicable in the present case is the rule “that the personal representative in all cases represents the personal estate of the deceased, and is entitled to sue for it in equity as well as at law, without making the residuary legatees or any other persons interested in it parties to the suit.” Daniell’s Chancery Pleading and Practice, p. 270. This is undoubtedly a correct statement of the law; but here it begs the question. For the fundamental question in this case is whether the fund in controversy has, in consequence of the exercise by the testatrix of a general power of appointment vested in her, become part of the assets of the estate of the testatrix, so as to be subject to be reduced into possession by the executrix and paid out by her in the due course of administration in payment of debts and legacies, and for any other proper purpose for which administration is authorized. It is not a case in which the complainant seeks to have herself substituted as trustee of the fund in the place of the • defendants, which would present a very different case from the present, but one in which we think these omitted parties would equally be entitled to be heard. Nor is it a case in which she is seeking to get possession of the fund in pursuance of the power of appointment giving her the use and income of it during life or as long as she remains unmarried; for this would not be a suit by her as executrix, but a suit in her own right. The whole gist of the present suit is that the appellant, as executrix of her mother’s estate, is entitled to receive the fund as paid of the assets of that estate, to be disposed of like any other assets of the estate m the course of administration. Undoubtedly this would be her right, if the doctrine prevails in the District of Columbia that the testatrix, by the exercise of the general power of appointment, converted this fund into assets of her estate, and that there is nothing in the circumstances of the case to prevent the application of that doctrine; such as, for example, that the fund was raised and is held in another jurisdiction, and that presumably the trust in regard to it was declared with reference to the laws of that jurisdiction, which may be different from our own. On the other hand, if that doctrine is not part of our settled law, or if the circumstances of the case preclude its application in the present controversy, the appellant is not entitled to the fund as executrix.

Now, it is very plain that the determination of this question in this instance is no more and no less than a determination of the question whether these omitted parties have any rights in the premises. If they have rights, then undoubtedly the appellant has no right as executrix to claim the fund. If they have no rights, that of the appellant as executrix is complete. The real question in the case is whether under the circumstances these omitted parties have any rights. How are the courts, with any semblance of justice or propriety, to adjudicate that question without giving these omitted parties an opportunity to be heard? How are the courts of the District of Columbia to give to the defendant trustees the benefit of their adjudication as a protection against possible proceedings against them hereafter by these omitted parties in the courts of the State of New York? It would seem to be absurd to regard the appellant as the representative of interests which it is the sole purpose of her suit to destroy.

It is possible that, upon a final hearing and with all the proper parties before the court, the appellant may be entitled to the relief which she seeks. But of that we express no opinion; nor has the question been here considered at all by us. What we decide is that it does not seem proper to us to consider that question until the proper parties are before the court.

We think that the decree of the Supreme Court of the District of Columbia in the premises was right, and that it should be affirmed, with costs. But, in view of all the circumstances of the case, the appellant, notwithstanding her refusal so to do in the court below, may still be admitted to make the proper parties to her suit, and the decree may be modified and. reopened for that purpose, if within ten days she will signify her purpose to that effect. Otherwise, the decree appealed from will be, and it is hereby, affirmed, with costs. And it is so ordered.